What is the test for a jury to determine whether a child has been sexually abused during the course of his lifetime?

California, United States of America


The following excerpt is from People v. Smith, 201 Cal.Rptr. 311, 35 Cal.3d 798, 678 P.2d 886 (Cal. 1984):

The court gave the jury the standard instructions defining murder, malice aforethought, second degree murder, second degree felony murder, and manslaughter. The second degree felony-murder instruction (CALJIC No. 8.32 (4th ed. 1979)) informed the jury that an unlawful killing, whether intentional, unintentional, or accidental, is second degree murder if it occurs during the commission of a felony inherently dangerous to human life, and that felony child abuse ( 273a, subd. (1)) is such a crime. Defendant contends that on the facts of this case the crime of felony child abuse was an integral part of and included in fact within the homicide, and hence that it merged into the latter under the rule of People v. Ireland (1969) 70 [35 Cal.3d 803] Cal.2d 522, 538-540, 75 Cal.Rptr. 188, 450 P.2d 580. We agree.

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